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Thursday, 13 June 2013

General Keith Alexander, the chief of the US National Security Agency, today appeared before a Senate committee and was quizzed publicly for the first time on issues related to the agency's recently revealed surveillance programs.

Most of the questions Alexander faced concerned the secret mass retention of Americans' phone records, exposed by the Guardian last week, which the spy chief said is necessary to conduct retrospective surveillance of patterns of communication during counter-terrorism investigations — enabling the agency to go "back and time" to monitor who has called whom, when, and for how long.

Perhaps the most notable point in Alexander's appearance came during an exchange with Oregon Senator Jeff Merkley (Democrat), who asked a few specific, probing questions about the section of the Patriot Act (215) being used to justify storing the records. Merkley seemed to believe the NSA had exceeded its authority in mass retaining the records, and I think his comments pinpoint a crucial part of the legal debate about the scope of the surveillance that we will see more of in the weeks ahead. Merkley also pressed for secret interpretations of the law being used by the government to justify the surveillance to be declassified and published, a point that Alexander seemed to agree was necessary though said he couldn't guarantee it because he was "not the only decision maker in the administration."

See the relevant part of the exchange below:

Sen. Merkley: You referred to section 215 [of the Patriot Act] and 215 requires for an application for production of any tangible thing. It says in it that this application must have a statement of facts showing reasonable grounds that the tangible things sought are relevant to an authorised investigation. So we have several standards of law embedded in this application: A statement of facts, reasonable grounds, and tangible things that are relevant to an authorised investigation.

Now as it's been described in this conversation and in the press, the standard for collecting phone records on Americans is now all phone records, all the time, all across America. How do we get from the reasonable grounds, relevant authorised investigation, statement of facts, to all phone records, all the time, all locations? How do you make that transition and how has the standard of the law been met?

General Alexander: So this is what we have to deal with the court and I think that... we go through this court process... it's a very deliberate process where we meet all of those portions of the 215. We lay out for the court what we're going to do and to meet that portion we just said. The answer is we don't get to look at the data, we don't get to swim through the data....

Sen. Merkley: Let me stop you there, because these are requirements to acquire the data, not to analyze the data, to acquire the data ... this is the application to acquire the data. So here I have my Verizon phone, my cell phone, what authorized investigation gave you the grounds for acquiring my cellphone data?

General Alexander: On this part here, on the legal standards and stuff, on this part here I think we need to get Department of Justice and others because it is a complex area and you're asking a specific question. I don't want to shirk that but I want to make sure I get it exactly right. And so I do think part of what we should do is perhaps at the closed hearing tomorrow walk through that with the intent of taking what you've asked and seeing if we can get it declassified and out to the American people so they can see how exactly how we do it because I do think that should be answered.

Sen. Merkley: In between these two pieces, the FISA court gives an interpretation of the plain language of the law, their interpretation is what translates the standards of the law into what is governable in terms of what you can do. I had an amendment last December that said these findings of law that translate the requirements that are in the law into what is permissible needs to be declassified so we can have the debate. I believe that what you just said is that you want to have that information to be declassified that explains how you get from these standards of law to the conduct that has now been presented publicly. Did I catch that right and do you support the standards of law, the interpretations of the FISA court of the plain language to be set before the American people so we can have this debate?

General Alexander: I think that makes sense. I'm not the only decision maker in the administration on this process so there are two issues I'm not equivocating. I just want to make sure that I put this expectation exactly right and that is I don't want to jeopardize the security of Americans by making a mistake and saying yes we're going to do all that, but the intent is to get the transparency there.

So Senator I will work hard to do that, and if I can't do that I will come back to you and tell you why and we will have that discussion and run it out and I defer to the chair of the intelligence committee. But I think that's reasonable to get this out. Having said that I don't have the legal background that perhaps you have in this area.

I want this debate out there for a couple of reasons. I think that what we're doing to protect American citizens here is the right thing. Our agency takes great pride in protecting this nation and our civil liberties and privacy and doing it in partnership with this committee, with congress and the courts. We aren't trying to hide it we are trying to protect America so we need your help in doing that. [...]

Sen. Merkley: General I thank you for your statement of support. I also want to thank chair Feinstein who helped develop and send a letter expressing this concern about the secrecy of the interpretations of the FISA court ... I think it's time that [the FISA interpretations] become understandable and public because otherwise how in a democracy do you have a debate if you don't know what the plain language [of the law] means. I do have concerns about that translation and I will continue this conversation.